by Rex Wockner
Do bans on same-sex marriage infringe gay people’s fundamental federal constitutional rights? Or is marriage, by definition, an institution that “channels” procreating heterosexuals into stable unions for the sake of children?
The federal lawsuit against California’s Proposition 8, which amended the state constitution in 2008 to re-ban same-sex marriage, wrapped up in U.S. District Court in San Francisco on June 16 following a five-month hiatus.
Lawyer Ted Olson argued that Prop. 8 violates, among other things, the U.S. Constitution’s equal-protection clause by creating separate classes of people with different laws for each.
“The fundamental constitutional right to marry has been taken away from the plaintiffs and tens of thousands of similarly situated Californians,” Olson said in his closing argument. “Their state has rewritten its constitution in order to place them into a special disfavored category where their most intimate personal relationships are not valid, not recognized and second-rate. Their state has stigmatized them as unworthy of marriage, different and less respected. … There is not a compelling governmental interest to put the plaintiffs in a class like this and take away what the Supreme Court has called a fundamental right, a right of liberty, privacy, association, intimacy and autonomy.”
“This law is discriminatory,” he continued. “The evidence is overwhelming that it imposes great social harm on individuals who are our equals. They are members of our society. They pay their taxes. They want to form a household. They want to raise their children in happiness and in the same way that their neighbors do. We are imposing great damage on them by the … state of California saying they are different and they cannot have the happiness, they cannot have the privacy, they cannot have the liberty, they cannot have the intimate association in the context of a marriage that the rest of our citizens do.
“We have demonstrated during this trial that that causes grave and permanent, irreparable and totally unnecessary harm, because we are withholding from them … that right of marriage in the context of the intimate relationship. We are withholding that from them, hurting them and we are doing no good. If we had a reason, a really good reason for inflicting all of that harm, that might be another matter, but there is no reason.”
Pro-Prop. 8 lawyer Charles Cooper, in his closing argument, said that “the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.”
“The right to marry is bound up with and proceeds from the fundamental nature and its fundamental purpose relating to procreation and the existence and survival of the human race,” he said. “So it is itself, by definition, the right of a man to marry a woman, and vice versa. That is – that is the right.”
Cooper also argued that sexual orientation is not fixed, referring to “its amorphous, effectively indefinable – at least consistently – nature, and the simple fact that it is not immutable (or) an accident of birth.”
“Sexual orientation does change,” he said. “It does change over time. And it apparently changes especially in women.”
The question of whether sexual orientation is fixed could determine how high a legal “hurdle” Prop. 8 has to “jump” to be deemed constitutional. Other factors also could apply, such as whether gays have suffered a history of discrimination and whether they are politically powerless.
Under the toughest level of federal judicial review – “strict scrutiny” – governmental restrictions of any sort on certain population groups’ equal-protection rights are frequently struck down. The anti-Prop. 8 lawyers want Judge Vaughn Walker to apply strict scrutiny in the case. The pro-Prop. 8 lawyers are hoping for a more relaxed “rational basis” review, under which Prop. 8 could be considered constitutional if any logical reason for its existence can be found.
The trial transcript suggests that, to date, no attempt to apply “strict scrutiny” to sexual orientation in a federal case has ultimately succeeded. It has been applied to such “immutable” things as race and national origin – and to religion and status as a noncitizen.
Walker suggested to Cooper that he sees the history of discrimination against gay people as the most important factor in determining the legal stringency of his review of Prop. 8.
“Isn’t it that it’s the historical context that determines whether or not strict scrutiny is appropriate for a particular classification, more than the political-power factor or the immutability factor or these other factors?” Walker asked. “Isn’t that really what decides the issue? … Isn’t Proposition 8 and these other propositions in other states that limit marriage to opposite-sex couples, the DOMA statute that has been mentioned, the exclusion of gays and lesbians from military service for a long period of time, aren’t all of those simply indicia of a long history of discrimination?”
Cooper replied: “We have never disputed and we have offered to stipulate that gays and lesbians have been the victims of a long and shameful history of discrimination. (But) the fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny. The (U.S. Supreme) Court has always insisted, as well, on immutability of the characteristic and political powerlessness at the time that the issue comes forward to the court.”
When Cooper wrapped up his closing argument, Olson spoke again.
“Mr. Cooper talks about procreation as the fundamental basis for marriage,” Olson said. “Well, don’t you have to prove that Proposition 8 does something to protect procreation? (The U.S. Supreme Court has said that) ‘under the lowest standard of review, you have to prove that you have a legitimate interest and that the object’ – Proposition 8 in this case – ‘advances that legitimate interest.'”
“So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation?” he asked. “They are not a threat to us. What one single bit of evidence (is there) that they are a threat to the channeling (of procreation into marriage) function? If you accept that California has the right to do that in the first place. And I do not. This is an individual constitutional right. And every Supreme Court decision says that it’s a right of persons. Not the right of California to channel those of us who live in California into certain activities or in a certain way.”
Olson concluded: “(Overturning) Proposition 8 isn’t changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation.”
Walker then asked Olson whether the U.S. Supreme Court would uphold Walker’s ruling if he strikes down Prop 8.
“Do we have a political tide here (on same-sex marriage) that’s going to carry the Supreme Court?” he asked.
“I believe, Your Honor, that there is a political tide running,” Olson replied. “I think that people’s eyes are being opened. People are becoming more understanding and tolerant. The polls tell us that. That isn’t any secret. But that does not justify a judge in a court to say: ‘I really need the polls to be just a few points higher. I need someone to go out and take the temperature of the American public before I can break this barrier and break down this discrimination.’ … This (issue) is going to be in a court. Some judge is going to have to decide what we’ve asked you to decide. And there will never be a case with a more thorough presentation of the evidence.”
The Prop. 8 case could end up at the U.S. Supreme Court as soon as next year, after a stop at the 9th U.S. Circuit Court of Appeals. If successful, the suit could bring about the legalization of same-sex marriage nationwide. If unsuccessful, it could have the effect of stopping the movement for same-sex marriage – which now is legal in five states and Washington, D.C. – dead in its tracks for possibly a generation.
The trial had been paused since testimony concluded on Jan. 27 because Walker said he wanted to study the record before hearing the attorneys’ final statements. The hiatus dragged on longer than expected because of legal skirmishes over production of documents by organizations that campaigned against passage of Proposition 8.
No date is set for Judge Walker’s decision, but parties on both sides expect to hear a ruling within a few weeks.